Davis v. Koch

130 A.D.3d 1027, 12 N.Y.S.3d 914

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 29, 2015
• Status: Published

Opinion

Appeal from an order of the Family Court, Dutchess County (Denise M. Watson, J.), entered June 16, 2014. The order dismissed, without prejudice, the father’s petition seeking visitation with the subject children due to his failure to prosecute this matter.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to Family Court, Dutchess County, for further proceedings consistent herewith.

The father, an inmate at a correctional facility, correctly contends that the Family Court erred in dismissing his petition for failure to prosecute. Where, as here, the record indicates only that the correctional facility did not produce the father, and “the correctional facility [was] not responding,” there was no basis for dismissing the petition for neglect to prosecute (see Matter of Brudasca v Cottone, 110 AD3d 1067 [2013] ).

To the extent that the mother and the attorney for the children contend that this Court should affirm the order on the alternative ground that the Family Court had adequate relevant information to make an informed determination of the children’s best interests (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545 [1983]; Matter of Myers v Anderson, 100 AD3d 906 [2012]), that contention is without merit (see Matter of Crowell v Livziey, 20 AD3d 923 [2005]).

Contrary to the father’s contention, the order appealed from did not prohibit him from filing further petitions without leave of court. Accordingly, his arguments with respect to this contention are not properly before this Court (see generally CPLR 5511; Matter of Sarah A. [Daniel A.], 113 AD3d 845, 846 [2014] ). Chambers, J.P., Hall, Cohen and Maltese, JJ., concur.